Opinion: It's not about Kavanaugh's judicial philosophy

By Max BootThe Washington Post

Tuesday

Sep 4, 2018 at 6:41 AM

Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit is a superbly qualified Supreme Court nominee. But let's be honest about why he was chosen — and why his choice is so popular on the right. It's not because of his judicial philosophy, known as "originalism" — i.e., trying to discern the original meaning of the Constitution.

Aside possibly from a few members of the Federalist Society, which helped to put together President Donald Trump's master list of court nominees, few people, including the president himself, are interested in judicial philosophy. They're interested in political outcomes. Thus conservatives are being disingenuous when they claim, as does former prosecutor Andrew McCarthy, that they simply want judges who are "committed to construing the law as it is written."

I made a similar argument in a 1998 book on the judiciary. But I now realize there is no Platonic ideal of interpretation that allows judges to unerringly discern the original meaning of the Constitution or the correct interpretation of often vaguely worded statues. All sorts of difficulties arise: What if, as was often the case, one Founding Father disagreed with another? What if, as is also frequently the case, the court has to rule on matters that, because of technological or social developments, were unforeseen by the founders? And what if a justice's interpretation of "original intent" is at odds with decades of precedents — is it "conservative" to overturn the prevailing line of cases?

No less a sage than Judge Amy Coney Barrett, one of Trump's shortlist nominees, has admitted that it's almost impossible to apply originalism faithfully because "adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education." Yes, Brown v. Board of Education- the revered 1954 decision that outlawed racial segregation in schools — was an "activist" ruling. Does that mean it should be overturned? Not even Justice Antonin Scalia, the leading "textual originalist," ever went so far.

When Scalia did attempt to apply his judicial philosophy, the results often (though not always) mirrored his political views. Scalia, for example, scoffed at the notion that the 14th Amendment's equal-protection clause outlawed discrimination against women or gays. "In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation," he said. Yet in 2000, he and four other conservative justices decided that the 14th Amendment gave them the right to stop the Florida recount and thus make George W. Bush president. Did anyone in 1868 have that outcome in mind?

Eight years later, Scalia wrote for a 5-4 majority in Heller v. District of Columbia that the Second Amendment conferred an individual right to own guns, even though most historians say that it was passed to prevent the federal government from disbanding state militias ("A well-regulated militia being necessary to the security of a free state"). Was it just a coincidence that Scalia was a gun owner and avid hunter? And how is it that no court in the previous 218 years had ever discovered this "right" if it had been there from the beginning? Such rulings led the libertarian Richard A. Posner, then a judge, and one of the most influential legal thinkers of modern times, to eviscerate Scalia's conceit that jurists are simply "passive interpreters" of the laws whose role is merely "semantic."

If any further proof is needed that all judges, including self-proclaimed originalists, inject their own views into decisions, look at the Supreme Court's recent 5-to-4 rulings. Only a blinkered partisan could possibly imagine that the Constitution dictates that government workers who choose not to join unions aren't required to help pay for collective bargaining (Janus v. AFSCME), that the government can ban travelers from certain Muslim nations (Trump v. Hawaii), that a state can't require "crisis pregnancy centers" to provide information about abortion (National Institute v. Becerra) or that the government needs a warrant to collect location data on cellphone users (Carpenter v. U.S.).

Those may be the right decisions, but there are strong arguments on the losing side that are also rooted in perfectly reasonable interpretations of the Constitution. That's why the court was so closely split — and not always along predictable lines. In Carpenter, for example, Chief Justice John Roberts Jr. ruled for digital privacy along with his four more liberal colleagues.

It's a canard to claim that only liberal justices are "activists." Both liberal and conservative judges legislate, to a greater or lesser degree, because there is usually no right answer to complex questions of constitutional interpretation.

If all judges are guided by their beliefs, then my preference is for judges such as Sandra Day O'Connor or Anthony M. Kennedy who were open to persuasion and generally hewed to the center. Kavanaugh is too right-wing for my taste, but I recognize that elections have consequences, and Trump has every right to appoint a justice who will reflect the preferences of his base. Just don't pretend that those preferences are mandated by the Constitution.

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